Public Bill Committee

[Mr. Eric Illsley in the Chair]

Further written evidence to be reported to the House

PB 30 Friends of the Earth Supplementary
PB 35 High Peak Borough Council
PB 36 Friends of the Earth - Postcards

Clause 172

Relationship with other powers

Daniel Rogerson: I beg to move amendment No. 589, in clause 172, page 97, line 10, after ‘obligations)’, insert ‘subject to the requirements that—
(i) in any development where a contribution to affordable housing is secured by the charging authority, such contribution is calculated without regard to such CIL as may be payable;
(ii) in cases where sub-paragraph (i) applies, the payment of CIL may be reduced if the return on the investment in the development as a whole can be shown by the applicant to fall below a specified threshold; and
(iii) the method for calculating that threshold and the level of residual CIL payment referred to in sub-paragraph (ii) shall be specified in CIL regulations;’.

Eric Illsley: With this it will be convenient to discuss the following amendments: No. 617, in clause 172, page 97, line 14, after ‘CIL’, insert
‘, and about how to ensure that developers do not pay for the same infrastructure under two different powers’.
No. 610, in clause 172, page 97, line 14, at end add—
‘(3) Powers under section 106 of TCPA 1990 and section 278 of the Highways Act 1980 shall not be exercised to secure obligations to pay for and contribute towards infrastructure of a class included within any CIL calculation except—
(a) where the developer has elected to off-set an element of CIL liability against a section 106 agreement, provided for under section 168(4), or
(b) where the infrastructure is needed to access the site bound by the obligation and the need for that infrastructure is wholly or mainly a consequence of the development site.’.

Daniel Rogerson: I welcome you back to the Chair, Mr. Illsley, as we continue our deliberations into the final straight.
The amendments tabled in my name are fairly straightforward. We touched on whether the affordable proportion of housing developments should be subject to community infrastructure levy in earlier debates. This is a related but separate matter.
Gains have been made in affordable housing and in local authorities strengthening their arm in negotiations with developers; they are getting better at it and securing more affordable housing as part of delivery. We do not want to see a conflict between CIL and the affordable housing element of a scheme, in terms of what the developer can afford to fund.
If there is such a conflict, the amendment seeks to ensure that the affordable housing element is handled first, so that as much affordable housing is delivered as possible, and the CIL element is considered after that. I hope that the Minister will support that principle. He might tell me that that is fine, and that as far as he is concerned the Bill will do that anyway, but I will be interested to hear his justification for that.
The amendment is therefore aimed at securing that progress towards achieving the affordable housing rate that we all want, to ensure that we at least begin to tackle the country’s affordable housing crisis.

John Healey: I can pretty quickly give the hon. Gentleman the assurance that he seeks. He might recall that, on Thursday, on the back of a Government amendment, the Committee discussed the nature of affordable housing.
Ultimately, one of the principal drivers of the levy is to create a way in which we can support and unlock housing growth, rather than hold it back or prevent it. That was the reason that, last Thursday, we introduced the Government amendment that would allow infrastructure to have an incorporated definition of affordable housing. However, I also made it clear that the Government intend that affordable housing will continue to be secured through agreements, rather than through the obligation process and the levy. That is our preferred way of operating. Clearly, it makes sense to have that back-stop, should we require it, if the fears of some that affordable housing might be choked off or reduced as a result of the levy are realised.

Daniel Rogerson: May I briefly clarify one point? Obviously, we are entering a period of negotiations as to how CIL will work and be constituted, but it is not clear to me what powers are available to individual local authorities in that regard. For example, perhaps years in advance of a negotiation, local authorities might have set what CIL means to them, including its level and the types of infrastructure that it would fund. If they were at risk of not delivering through a separate section 106 agreement, would they then able to revisit it, to ensure the affordable housing element? If the benefit of CIL is that it is clear to all developers in the local authority in advance what the levy will be, how could they vary it in an individual circumstance if the section 106 negotiations were not delivering the affordable housing element?

John Healey: If the hon. Gentleman and others have further concerns about this matter, they would be properly dealt with when we move from the primary legislation to the process of production and the settling of charging schedules. However, he has registered his concerns clearly this morning and I have taken note of them.

Jacqui Lait: I apologise for being slightly wrong-footed, but I was expecting another group of amendments to be called before this one. My concerns are very similar to those of the hon. Member for North Cornwall. However, mine go a little further than just affordable housing. I am concerned about ensuring that section 106 agreements can continue more or less as they are, not just for affordable housing, but in other areas because of the impact that the community infrastructure levy could have on the willingness of developers to contribute to section 106 agreements.
Sometimes, a properly agreed and managed section 106 agreement will be more effective for local communities than CIL. If there is a real need for something in a local community, a section 106 agreement might be more acceptable to that community than an infrastructure levy that is used to develop infrastructure outside the community that is not of immediate benefit to it. Amendment No. 610 would deal with concerns of that nature. If the Minister could reassure us on those points, I would be grateful.

John Healey: I think that I can reassure the hon. Lady in two areas. First, I will reflect on her further concerns about the interaction between section 106 agreements and CIL. There is an implicit flex in the intention of the amendment that would make the levy reflect contributions to affordable housing. She will appreciate that there is difficulty in that because it would take us back to one of the principal criticisms of the planning gain supplement, with its site-specific arguments and evaluations. To adjust levy liability for individual developments to reflect the level of affordable housing would take us into the territory of greater uncertainty, lengthy negotiations and inevitable disputes—particularly under the terms of the amendment—over rates of return on investment and how to define and establish such matters.
Secondly, I understand the hon. Lady’s concern that developers should not pay twice for infrastructure, through section 106 agreements and through the levy. Does that issue underpin her concerns?

Jacqui Lait: The impact could be that developers pay twice, but my concern is about which method has primacy. If a local community wants a health centre more than it wants the replacement of a road junction, could it insist on the use of section 106 rather than CIL to ensure that it gets the health centre?

John Healey: I think that the hon. Lady will find the document that we published nearly two weeks ago helpful on this matter, particularly paragraphs 64 to 66. Essentially, we suggest that section 106 agreements are appropriate in three areas: on technical matters such as restrictions on the use of land; on site-specific impacts, which are prerequisites for planning permission; and on affordable housing. Those are the matters to which section 106 agreements are best suited.
Amendment No. 610 would establish a boundary between section 106 agreements and the levy by using classes of infrastructure, whereby local planning authorities could seek funding for certain types of infrastructure from only one source: either from section 106 agreements or from the levy. The associated amendment would give the Secretary of State the power to provide guidance on how that might work.
In our discussion paper, we specifically asked what approach should be taken to that question, which I hope reassures the hon. Lady and members of the Committee that we are working for the best solution. Through the discussion document, I want to seek views and then formally consult. Those are the two stages that I intend to go through on that. In fact, the document floats an option that is stronger than guidance: a statutory boundary between the two. That might not be the answer, but it is one of the options that we have flagged up in the discussion document, and that underlines the importance of the area.
Given that I have tried to explain how important that set of concerns is, how seriously we are taking it and the work that we have got in train to sort out the best solution, I hope that the hon. Members who tabled the amendments will feel that they have been useful probing amendments and will not press them to a vote.

Clive Betts: I apologise for not being here at the beginning of the debate. My hon. Friend the Minister was just dealing with amendment No. 617, which stands in my name. Certainly, the issue raised is in the minds of organisations such as the British Property Federation. In a debate last week, I asked whether a developer who paid for affordable housing on a particular site under section 106—negotiable with the local authority, as all section 106 agreements are—would be subject at the same time to CIL, particularly if CIL was on a fairly rigid formula. That relates to some of our discussions last week on how to measure CIL, and I accept that there are still a lot of discussions and negotiations to be had on whether it is a rigid formula.
A developer could come along who wants to negotiate 106 but feels that, despite giving away more on 106, he will still end up paying the same amount of CIL. Alternatively, will CIL, in practice, be more of a negotiation between the developer and the local authority? Although I accept that it would reduce the certainty that developers look for in some cases, it might also allow precisely that bit of leeway for a developer to come along and ask, “Well, I would like a little more work on highways on site, but will agreeing to that under 106 reduce the CIL I pay, or will CIL be fixed in any case? Should I really give nothing away on 106 because I will not get the benefit when CIL is calculated?” Will the Minister assure me that there is still room for negotiation between the various parties that he and his officials are talking to before a final scheme is determined?

John Healey: I shall not go over all the points that I made before my hon. Friend joined us, but the short answer is that there is plenty of scope and a process for detailed further discussion. I remind him, however, as we have said at several stages of our discussions, that our principal intent is to set out the levy in a charging schedule and, where possible, to avoid uncertainty, site-specific negotiation and a lack of predictability and openness about the process, as in the situation that he cited. In such a situation, there could be disputes about the right and realistic expectation of a developer’s contribution on a site-by-site basis. In relation to his concerns, I am anxious that we are not dragged back to that sort of situation.
Clearly, there is plenty of discussion still to be had on how the proposal might work in practice, but my hon. Friend generally underlines the case that I made to the Committee last week for affordable housing principally being best suited to 106 agreements and not to specification as an eligible type of infrastructure that could be paid for under the levy. We made the amendment last week as a back-stop. If the level of affordable housing that the country badly needs, and that the Government badly want to see, starts to dry up as a result of the proposal, we would have the capacity in primary legislation to designate affordable housing as an allowable form of infrastructure to be supported by the levy. That is not our intention, however, as we believe that affordable housing is, as now, best dealt with through section 106 agreements.

Daniel Rogerson: The hon. Member for Sheffield, Attercliffe has hit on the point that I was trying to make, although not very clearly or eloquently, in my intervention on the Minister about the conflict between a process of negotiation under 106 and something that is fixed in advance. One of the benefits of CIL is that it is transparent. Everyone will know what is expected of them before they bring their development to the table. If a problem comes to light in relation to the implementation of CIL, that will impact on negotiations under 106.
While I am pleased to hear that CIL can be revisited to take account of the amendment we discussed last week, it would be too late for many developments that might already have taken place. As I have mentioned previously, I have 70 parishes in my constituency, and some are very small—if one development has happened, that will be it for the next 10 years. That is the cause of my concern. I will not press the amendment to a vote but further examination is needed so that we do not lock the stable door after the horse has bolted and lose out on an opportunity to get affordable housing in some areas. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 568, in clause 172, page 97, line 11, at end insert—
‘(1A) CIL regulations may include provision about the exercise of any other power relating to planning or development.’.
No. 569, in clause 172, page 97, line 12, leave out from ‘how’ to ‘and’ in line 14 and insert
‘a power relating to planning or development is to be exercised;’.
No. 570, in clause 172, page 97, line 14, at end add—
‘(3) Provision may be made under subsection (1) or (1A), and guidance may be given under subsection (2), only if the Secretary of State thinks it necessary or expedient for—
(a) complementing the main purpose of CIL regulations,
(b) enhancing the effectiveness of CIL regulations,
(c) preventing agreements, undertakings or other transactions from being used to undermine or circumvent CIL regulations,
(d) preventing agreements, undertakings or other transactions from being used to achieve a purpose that the Secretary of State thinks would better be achieved through the application of CIL regulations, or
(e) preventing or restricting the imposition of burdens, the making of agreements or the giving of undertakings, in addition to CIL.
(4) CIL regulations may provide that a power to give guidance or directions may not be exercised—
(a) in relation to matters specified in the regulations,
(b) in cases or circumstances specified in the regulations,
(c) for a purpose specified in the regulations, or
(d) to an extent specified in the regulations.’.—[John Healey.]

Question proposed, That the clause, as amended, stand part of the Bill.

Eric Illsley: With this it will be convenient to discuss new clause 5—Abolition of planning contributions
‘Sections 46 (planning contribution), 47 (planning contribution: regulations), and 48 (planning contribution: Wales) of the Planning and Compulsory Purchase Act 2004 are omitted.’.

Jacqui Lait: This will be brief as the new clause is intended to elicit information from the Minister. Clause 172 is commonsensical and we do not have any problems with it, but the new clause relates to planning contributions under the 2004 Act. Given that we are talking about CIL and section 106, we would be grateful if the Minister could advise us on the role of planning contributions under that Act. We might have a third stream of contribution that could clobber developers, particular in a market where land properties and values are going down, and it would make it increasingly difficult to get the developments that he is looking forward to seeing.

John Healey: I am glad that the hon. Lady sees the clause as commonsensical.

Jacqui Lait: Well, given—

John Healey: Shall we leave it at that?
Given that the planning contribution system was designed to replace section 106, the repeal was not included in the 2004 Act. However, now that we are moving to introduce the levy, I have considerable sympathy with the hon. Lady’s argument. I will look further at her proposal and return to the matter on Report.

Jacqui Lait: I am grateful to the Minister and look forward to Report, because we can chalk that up as the No. 1 possibility.

Question put and agreed to.

Clause 172, as amended, ordered to stand part of the Bill.

Clause 173 ordered to stand part of the Bill.

Clause 174

Expressions relating to the Crown

Daniel Rogerson: I beg to move amendment No. 577, in clause 174, page 97, leave out lines 36 and 37.

Eric Illsley: With this it will be convenient to discuss the following amendments: No. 578, in clause 174, page 98, line 11, leave out paragraph (e).
No. 579, in clause 174, page 98, line 33, leave out paragraph (b).

Daniel Rogerson: I confess that I may be thinking more parochially about this clause than others, as it defines how Crown land is to be interpreted in the Bill. We have already discussed Crown land exemptions and I accept that there are occasions when such land is vital to the nation.
It is no reflection on the present Duke of Cornwall, for whom I have the utmost regard, but the history of the Duchy is that at times it seeks to define itself in terms of its constitutional role. People may not be familiar with the constitutional peculiarities of the Duchy of Cornwall. Various provisions apply to the foreshore, mineral rights and so on, and if one dies intestate in Cornwall the estate goes not to the Crown but to the Duchy of Cornwall. The Duchy has a constitutional significance that it has defended through the courts.

Elfyn Llwyd: The estate goes to the Duchy if a person without relatives dies intestate.

Daniel Rogerson: I am grateful to the hon. Gentleman for that piece of legal education as I am obviously sadly lacking in that respect.
The Duchy has a constitutional position that at times it seeks to emphasise and at other times it seeks not to do so and defines itself as a private estate. It cannot have it both ways. If it is a private estate, and I would say that it is because it exists to supply an income for the heir to the throne, why is it exempt from provisions to which other citizens must have regard?
I understand the argument for the Crown’s position in respect of Government land used, for example, by the Ministry of Defence, but I struggle to see why Duchy of Cornwall farms should be treated any differently from other farms, such as county council-tenanted farms. I hastily backtrack and say that the amendment implies no criticism of the current incumbent; it seeks to discover how the Government view the Duchy of Cornwall and why it is included with other Crown land, which is more understandable in this context. What is the Government’s opinion on the matter?

Parmjit Dhanda: It is nice to be back and serving under your chairmanship, Mr. Illsley, as we head towards the twilight phase of the Committee sittings.

Jacqui Lait: We are not going that way.

Parmjit Dhanda: Who knows?
I will not accuse the hon. Gentleman of tabling a republican amendment, but clause 173, which we skipped over, applies the Bill specifically to the Crown, including the Duchy. He raised concerns about the Duchy of Cornwall receiving special treatment under the Bill, but the clause is consistent with the commitment to remove Crown immunity on planning matters implemented by the Planning and Compulsory Purchase Act 2004, which amended section 293 of the Town and Country Planning Act 1990. The definition of Crown land, which included land belonging to the Duchy of Cornwall, was unchanged. It is consistent with other legislation that applies to the Crown, as all Crown interests are treated the same. It would be improper to treat one interest—in this case, the Duchy of Cornwall— differently from another, as he suggested we do.
The drafting reflects the special position of the sovereign and her heirs in our constitution. That is the nub of it, which is where the hon. Gentleman’s complications and difficulties arise. That special place within our constitution is written into every measure, and it is difficult to start unpicking it in any Bill, including this one.
As I said, the Bill applies to the Crown, but whereas in part 8 enforcement would refer to an appellant, in this case it would refer to an individual who is appointed by the heirs to the Crown. It is still relevant but at the same time it has to be written in a way that observes our constitution. The Crown, as Head of State, cannot enforce measures on the Crown, which is why the provisions are so drafted. I hope that that helps the hon. Gentleman and that he will withdraw the amendment.

Daniel Rogerson: I listened with interest to what the Minister said. There is not much justification for the proposal, except that it is what has always been done, but that is a debate for another time and place so I will not detain the Committee. The answer to my question was not forthcoming, but on the basis that I may wish to pursue the issue elsewhere, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 174 ordered to stand part of the Bill.

Clause 175 ordered to stand part of the Bill.

Clause 176

Service of notices: general

Daniel Rogerson: I beg to move amendment No. 580, in clause 176, page 98, line 44, leave out ‘may’ and insert ‘must’.

Eric Illsley: With this it will be convenient to discuss the following amendments: No. 581, in clause 176, page 98, line 44, leave out ‘either’.
No. 582, in clause 176, page 99, line 2, at end insert ‘and’.
No. 583, in clause 176, page 99, line 5, at end insert ‘and’.
No. 584, in clause 176, page 99, line 9, at end insert—
‘(1A) A notice or other document required or authorised to be served or given under this Act may additionally be served by the following methods—’.

Daniel Rogerson: My concern is that the clause as drafted refers to notice being given “either” and then lists a number of ways in which that can be done. For example, it mentions service using electronic communications. Notices might be issued solely by that means, and therefore would not reach certain people, as we have discussed. Also, people who have an interest in, or own, land but do not reside there and do not visit it on a frequent basis may not see notices posted there.
The amendment would encourage the Government to ensure that all notices are delivered by as many means as possible so that people have ample opportunity to consider matters that may be relevant to them and to their interests. I hope that they will accept the amendment—I suspect that they will not—or reassure me on the record that the spirit of the Bill is that every opportunity will be taken to contact people to ensure that they have the relevant information and can act accordingly, in full knowledge of what is being proposed.

Parmjit Dhanda: The hon. Gentleman wishes to amend the clause to ensure that any person on whom a notice is served will receive it in at least three different ways. That would be excessive and rather inflexible, and we are trying to introduce a quicker and more flexible system. However, I do not disagree that it is important that a notice is received by the person on whom it is served and the clause has been constructed to ensure that there is sufficient flexibility for the person serving the notice to choose the best way of doing so. For instance, a person may be domiciled abroad, but have an interest in a particular parcel of land. That would make hand delivery difficult and expensive. In such situations, it would not be inconceivable that a person would prefer to receive information via e-mail, as he suggests. Requiring a person to serve a notice multiple times would, therefore, make it extremely difficult for such people to comply with the legislative requirement, if, for example, it was difficult to deliver it by hand. That is not to mention the excessive related costs.
Taking that on board and the fact that, if a person has registered an interest in an application, they would provide an address to which they would wish correspondence to be sent, which could be an electronic or a postal address, whether domestic or abroad, I hope that the hon. Gentleman will consider withdrawing the amendment.

Daniel Rogerson: I am grateful to the Minister for that reply. I am slightly suspicious of the words “speed” and flexibility”. It is fairly subjective to talk of something being quick and flexible, and it might be from the point of view of someone who wants an application to go forward.

Parmjit Dhanda: I hope that it will reassure the hon. Gentleman when I tell him that, if a person is deliberately excluded, which is probably his underlying concern, they would also be able to challenge the IPC’s decisions under the Bill.

Daniel Rogerson: That is a key point, which I am grateful to the Minister for making. As long as regard will be given to some form of proof that every opportunity has been taken to notify an interested person of a relevant application, and that they have the opportunity to participate in that application’s progress at every stage, I am reassured. However, I want to put it on the record once again that if someone is not present in the area, they may not see local advertising or even be aware that something is taking place. It is key that every method is pursued to ensure that everyone with an interest in that application has the opportunity to be consulted.
I will not seek to press the amendment to a vote. But it is an important point, as we are looking to changes in the planning system, that any consultation or interaction with the various interested parties must be opened and done in as thorough a way as possible. I am grateful to the Minister for putting that on the record. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 176 ordered to stand part of the Bill.

Clauses 177 to 181 ordered to stand part of the Bill.

Clause 182

Interpretation

Amendments made: No. 153, in clause 182, page 101, line 20, at end insert—
‘“alteration”, in relation to an airport, must be read in accordance with section 19(5);’.
No. 154, in clause 182, page 101, leave out lines 43 and 44.
No. 155, in clause 182, page 102, line 1, at end insert—
‘“gas reception facility” must be read in accordance with section [gas reception facilities] (2);’.
No. 156, in clause 182, page 102, line 19, at end insert—
‘“LNG facility” must be read in accordance with section [LNG facilities] (3);’.
No. 157, in clause 182, page 102, line 50, at end insert—
‘“standard”, in relation to a volume of gas, means the volume of gas at a pressure of 101.325 kiloPascals and a temperature of 273 Kelvin;’.
No. 158, in clause 182, page 103, line 6, at end insert—
‘“underground gas storage facilities” must be read in accordance with section 16(5);’.—[Mr. Dhanda.]

Clause 182, as amended, ordered to stand part of the Bill.

Clause 183

Application of Act to Scotland: modifications

Question proposed, That the clause stand part of the Bill.

Jacqui Lait: As one of only two Scottish voices on the Committee, I would like to discuss clause 183 and, with your permission, Mr. Illsley, clause 187. If I read the Bill correctly, both clauses refer to powers being handed to Scotland. If we discuss both clauses now, we will not have to reiterate the arguments when we get to clause 187. The clause is entitled “Application of Act to Scotland”. Clause 187 is entitled “Extent”, and lists those provisions that apply to England and Wales and those that apply to Scotland, in a number of areas.
Scotland has devolved power over planning issues, but the UK retains its power over issues such as energy policy. The clause refers to various parts of the Bill under which there are modifications for Scotland. It omits provisions relating to various development consent orders, in particular paragraphs (e) and (f) of clause 105(4), which relate to electricity generation. The question is whether that affects merely the planning implications of the development consent orders or whether it will allow the Scottish Parliament to take authority over the provision and, hence, the policy. By allowing the clauses to pass, will we allow the Scottish Parliament to take power over the policy for the provision of energy, as opposed to the planning?
The Scottish Parliament, the Scottish Government and the previous coalition that ran the Scottish Parliament have all set their faces against rebuilding nuclear power stations on the sites in Scotland where there is already planning consent. Scotland has historically been a net exporter of power to England. If those three nuclear power stations are not rebuilt, England and Wales will start being a net exporter of power to Scotland. That would be a shift in policy. Has this UK Parliament agreed that there should be such a shift or are we, under the Bill, allowing that shift in energy policy to be made?
If my reading of clause 187 is correct—as I have always said, I am no lawyer—it leaves only pipelines as an issue that is across Scottish and English borders. We understand the need for that provision, but in essence, are we not potentially handing control over pipelines for gas, electricity and water to Scotland? Are we inadvertently doing that by agreeing to these clauses? If the Minister can reassure me that we are not and that we do not have any constitutional arguments over this matter, I will be quite happy not to press my concerns further. If I am left with any concern about the quiet handing over to Scotland of control of UK policy, I will certainly return to the issue on another occasion.

Parmjit Dhanda: Clause 183 requires that when considering the Bill’s extent to Scotland, which is only in relation to cross-border oil and gas country pipelines, certain modifications must be made to particular provisions to ensure that they give the proper effect with regard to Scottish legislation. This is a basic clause to reflect the fact that Scotland is a separate jurisdiction from England and Wales. Clause 187 defines how the Bill extends to England, Scotland and Wales.

Jacqui Lait: Yes, Scotland is a separate jurisdiction for planning. It is not a separate jurisdiction for energy policy. I should have thought that pipelines were part of energy policy.

Parmjit Dhanda: Neither clause 183 nor clause 187 refer to powers in Scotland. They are specifically related to planning issues. I hope that that helps to clarify the issue for the hon. Lady. I could not make it any clearer than that. Clause 187 has been drafted in such a way as to ensure that the devolution settlement is respected. I commend both clauses to the Committee.

Jacqui Lait: I accept the Minister’s assurance that the provision applies only to planning. On that basis, I will not press the matter to a vote, although we might have to return to it on Report.

Clause 183 ordered to stand part of the Bill.

Clauses 184 and 185 ordered to stand part of the Bill.

Schedule 6

repeals

Parmjit Dhanda: I beg to move amendment No. 614, in schedule 6, page 129, line 4, column 2, at beginning insert—
‘Section 61A(1).’.

Eric Illsley: With this it will be convenient to discuss the following amendments:
No. 615, in schedule 6, page 129, line 10, at end insert—
‘In Schedule 4A, paragraph 2(4) and (5).’.
No. 611, in clause 188, page 106, line 2, after ‘154,’ insert
‘[local development orders: removal of requirement to implement policies],’.
Government new clause 29—Local development orders: removal of requirement to implement policies.

Parmjit Dhanda: Government amendments Nos. 614, 615, 611 and new clause 29 make a change to the requirements for the making by local planning authorities of local development orders. An LDO grants planning permission for the type of development which it specifies. It can apply to a specific site, an area or across the whole of a local authority area. It thereby removes the need to make an application for planning permission, in almost the opposite way to the article 4 direction that we discussed under part 9.
The Town and Country Planning (General Permitted Development) Order 1995 sets the national baseline for permitted development. The Government have made clear their desire to extend the scope of permitted development generally. However, alongside this aim, Ministers also want to make it easier for permitted development rights to be amended at the local level to reflect local circumstances, either extending them through the use of an LDO or restricting them by the making of an article 4 direction.
The power to make an LDO came into force on 10 May 2006 and as yet no LDOs have been made. There may be a number of reasons for this, including the national reviews of householder permitted development that we have already carried out. However, we believe that other changes can be made that might help streamline the process of making an LDO. One change is to remove the requirement for the Secretary of State’s approval before the LDO is made. That mirrors what we also propose for article 4 directions, and we intend to amend secondary legislation to achieve that.
The second change relates to the current restriction whereby a local planning authority can only make an LDO to implement a policy contained in a development plan document, or a local development plan in Wales. We believe that making that a prerequisite can cause unnecessary delay in the making of an LDO, given the time and resources that would be needed to see one adopted in the relevant development plan. As we want to facilitate the use of LDOs, we propose to simplify the process by removing that requirement.
New clause 29(2) therefore removes the requirement, laid out in section 61A of the 1990 Act, that LDOs can only be made to implement policies in a development plan document or local development plan. Subsections (3) and (4) make consequential amendments to the 1990 Act. The existing requirement to consult all those likely to be affected by the making of an LDO and to take into account representations made before it comes into force are sufficient safeguards to ensure the appropriate use of the power. Amendment Nos. 611, 614 and 615 are consequential amendments to the commencement provisions in clause 188 and the repeal provisions in schedule 6.

Jacqui Lait: I am grateful to the Minister for explaining new clause 29 and the consequential amendments in greater detail, but will he reassure me on some of the issues that have been raised, particularly by the Campaign to Protect Rural England? He said that the Government have been in negotiations, and I wonder what the outcome of those negotiations with the CPRE have been. It has certainly indicated to me that it believes the clause to be fundamentally flawed because it would prejudge the detailed and controlled development planning process and the public consultation that underlines it. That is, of course, a theme that has emerged from the Opposition Benches throughout our debates. If consultation is curtailed and local people do not feel that they have an adequate opportunity to register their concerns and objections, planning and development will risk not being acceptable to or accepted by local communities.
The CPRE also thinks that that could undermine the “plan, monitor and manage” approach to housing site allocation and release greenfield land for development, which the Opposition are not in favour of. A consequence of that could be that housing is in the wrong place at the wrong time. The CPRE is also concerned about damage to the ability to protect designated landscapes such as national parks and areas of outstanding natural beauty, which follows on from the previous point.
The CPRE believes that the environmental impact assessment could be made on the basis of inadequate information and would be unable to take account of the likely cumulative effect of development, as we can see when one development follows another, either creeping along roads or extending a village into a town without anyone really wishing it to happen—although they would certainly notice it happen. All of that can be open to our old friend, legal challenge. I would be grateful if the Minister could reassure us on all of those points and confirm that the Government are still in consultation with the CPRE and other bodies that will inevitably have similar concerns.

Parmjit Dhanda: I am grateful to the hon. Lady for making the point about the CPRE, because it is important that we consult it when taking those steps and, as I understand it, that has been ongoing within the Department. The key thing for her to consider is that the measure is about flexibility and enabling local authorities to use the power as they see fit, through proper consultation at a local level. I do not envisage the threats to greenfield land arising from the way in which local planning authorities make the small-scale changes that we are talking about. I am quite happy to put that on the record. It is important that such things are done through local authorities so that there is democratic accountability.
The Government’s approach is the right way to proceed. Hopefully, we will have continued discussion and consultation with the CPRE and will be able to reassure it. I am happy to give such reassurances on the record. However, we must also provide local government with the flexibility that it has in article 4 directions, where certain planning rights can be taken away to allow for small-scale developments.

Jacqui Lait: I am grateful to the Minister for that response, from which I take it that he can assure me that discussions with the CPRE and other bodies with similar concerns will continue. Perhaps the outcome of such discussions will be reflected in amendments on Report.

Parmjit Dhanda: The only further thing to add is that there will be a further round of consultation, of which I am sure the CPRE and others will want to be part.

Amendment agreed to.

Jacqui Lait: I beg to move amendment No. 217, in schedule 6, page 129, line 4, column 2, at beginning insert ‘Section 74(1)(b)’.

Eric Illsley: With this it will be convenient to discuss the following amendments: No. 218, in schedule 6, page 129, line 4, column 2, at beginning insert ‘Section 101’.
No. 220, in schedule 6, page 129, line 8, at end insert ‘Section 302’.
No. 219, in schedule 6, page 129, line 10, at end insert ‘Schedule 8’.
No. 221, in schedule 6, page 129, line 10, at end insert ‘Schedule 15’.
No. 222, in schedule 6, page 129, line 20, at end insert—
‘Section 43(1) in so far as it relates to section 70B of the TCPA, 43(2), 43(3) in so far as it relates to section 81B of the Listed Buildings Act, and 43(4) in so far as it relates to section 81B.
Sections 45 to 48.
Section 50.’.
No. 223, in schedule 6, page 129, line 21, at end insert—
‘Planning-gain Supplement (Preparations) Act 2007 (c. 2)
The whole Act.’.

Jacqui Lait: From our point of view, amendment No. 223 is the most important in the group because it would repeal the Planning-gain Supplement (Preparations) Act 2007 and take it firmly off the statute book. Throughout our discussions on the community infrastructure levy, we made it clear that while the planning gain supplement remains on the statute book, people will be concerned that at some point the Government will bring it back. Their commitment to CIL is suspect until the 2007 Act is repealed. We fought very hard against that Act while it was going through the House and are concerned that it is still on the statute book. There is a broader philosophical debate that to make CIL work properly, it would be an act of good faith for the Government to repeal PGS. We are therefore helping them down a road that I am sure they want to take.
On amendment No. 217, we do not believe that the Secretary of State needs to make a direction because the Town and Country Planning Act 1990 does not otherwise prevent planning permission from being granted that is inconsistent with the development plan. The provision is unnecessary and we recommended its removal.
The amendments are complex and I shall outline the reasons behind them. The revocation of section 101 and schedule 8 of the 1990 Act would remove the power of the Secretary of State to appoint a planning inquiry commission to inquire into proposed development. I referred to this in our earlier debates on the infrastructure planning commission, which, equally, we do not like. The planning inquiry commission was first mentioned in legislation in 1968, but the provision to establish it was never used. The provision was repeated in legislation in 1990, but it was never used. Again, we are trying to get the statute book into better order and wish to repeal the power to establish the planning inquiry commission because it is redundant.
Amendments Nos. 220 to 221 relate to section 302 and schedule 15, for the enforcement against breaches of planning control carried out during the second world war. I do not think that any of us in this room remember the second world war. We can understand potentially why that provision was included when the Town and Country Planning Act 1947 came into force—[Interruption.] Does the Minister wish to intervene?

Parmjit Dhanda: I will explain in a moment.

Jacqui Lait: I look forward to it.
When the 1947 Act first came into force, obviously there was a need to repair the damage caused by the second world war. Possibly, we have moved on sufficiently and can remove those provisions from the statute book. I look forward to hearing any reasons as to why not.
Amendment No. 222 would repeal various development control provisions in the Planning and Compulsory Purchase Act 2004 which have not been brought into force, including those that we originally talked about on planning contributions. Sections 45 and 50 of that Act are relevant.
The amendment would tidy up legislation on the statute book which is not being implemented. I would have thought that it would be a demonstration of good governance by the Government, to which they maintain that they are committed, if they were to clear out some of the redundant provisions in various pieces of legislation. Primarily, we want to see the 2007 Act repealed in full.

David Curry: We are dealing with the Banquo’s ghost of the planning-gain supplement. It is a spectre that has flickered in and out of our planning law for many years. It has been tried on a number of occasions and has failed each time, first, because it is a daft idea and, secondly, because the parties that were in opposition then made it clear that they would not put up with it when they got into government. Therefore, everyone has had a good interest in ensuring that it will not work. In fact, the PGS has had a deleterious effect.
My hon. Friend is right in that we should help the Government to clear out the debris in the attic. It is said that the two most painful things that can happen are to be divorced and to have to move house. I am no expert in the former; as to the latter, turning out the attic is the main traumatic event. We would like to help the Government clear out this particular attic.
In the attic, I still think that there is a rule that I must go and practise archery in the churchyard every Sunday afternoon, although no doubt the rules of the Health and Safety Executive would get in the way if I ever attempted to put that into practice. In fact, the executive’s motto seems to be, “Go and find out what they are doing and tell them to stop it.” That is rather like the experience of Field Marshal Bernard Montgomery, who said in his autobiography that his nanny used to be given instructions by his mother to go and find out what Bernard was doing and tell him to stop it. The Health and Safety Executive has clearly adopted the same motto.

Elfyn Llwyd: I do not know whether the right hon. Gentleman had time to read The Times this morning, which reported that the annual pancake race in Ripon was now off the agenda because of health and safety issues.

David Curry: I did know about that because Ripon is in my constituency. Apparently, the first reason is that the insurance companies demand a huge amount of money to insure anyone who trips on the cobbles. People have been running on the cobbles in Ripon, as the second oldest incorporated city in Britain, for millennia, without any need for the Health and Safety Executive or an insurance company to intervene. Secondly, the police demand a huge sum to police it. Remembrance day parades are not possible in my constituency now because the police say they are not prepared to deploy the people to—Mr. Illsley, I can see that you are fascinated by this. You may wish to continue the discussion over a cup of something at a later stage. I merely use that example to illuminate the problem with PGS.
When the Minister was at the Treasury he had a certain paternity for the Bill. No doubt he has an attachment to it, having acted as sort of “midhusband” during his time there. The other thing about this wretched measure is that it featured in the Barker report. The Government are prone to commissioning reports and then regarding them as a form of holy writ to which they constantly refer. The Barker report contained some sensible things but some pretty daft things too. The sage of Thaxted did not get it right on every occasion and Kate Barker did not get it right on this one.
The real question is why the provision should remain on the statute book. What do the Government want to do by keeping it? What is the purpose of that? It has been overtaken by a much more sensible measure which, subject to the way it operates, we all agree is a sensible way forward. We do not want this ghost lurking in the woodshed.

Richard Benyon: I do not want to mix analogies here, but at the public evidence hearing with the Minister, it was not so much Banquo’s ghost, but a sword of Damocles that the Government threatened to hang over us if we did not support CIL. It is retained as a threat.

David Curry: I suppose that must be the case, but the Government consulted the industry. They have set out in the explanatory document how the levy would work. It lists how the concept of CIL is already functioning in a number of places. For once we have a measure that has been tested and been shown to yield benefits. We do not need to think that CIL is going to fail. It is voluntary and does not need to be applied. Why do we have this embryonic measure in reserve? If the Government are going to keep it, what on earth is it for?
Are the woods of Dunsinane going to march on communities that fail to apply CIL and threaten them with the PGS? I hope that the Minister will say that they have put it there pour encourager les autres, as the French might say. They want to encourage the industry to engage in real consultations about a more sensible way forward, but they have a more sensible way forward. It works and therefore we can put Banquo’s ghost safely back to bed. I hope that the Minister will conspire with us in doing that. Then the Committee can share one heroic achievement.

Parmjit Dhanda: I am afraid that I cannot promise everything that the right hon. Gentleman would like, even on pancake day in Ripon, and I commiserate with him on that loss.
Amendment No. 217 is specifically about going against one’s own local development plan by sticking a supermarket in an out-of-town location, for example. As things stand, the Secretary of State can call it in. That would not be the case with the amendment. Whether it was deliberate or consequential, I hope that the hon. Lady withdraws it.
Amendments Nos. 218 and 219 would repeal section 101 and schedule 8 of the Town and Country Planning Act 1990, which provide for the constitution of planning inquiry commissions, as the hon. Lady suggested. I accept that there has never been a planning inquiry commission. Indeed, there is no prospect of one either. I sympathise with the thrust of the amendment, although we would have to check whether any consequential changes were needed before considering it further. As the provision in the 1990 Act is effectively harmless, its removal is not a priority and there are other pressures on parliamentary time.
Amendments Nos. 220 and 221, which hark back to the second world war, would repeal section 302 of the 1990 Act and its associated procedural schedule 15. Section 302 enables local planning authorities to enforce against wartime breaches of planning control by the Crown for five years after the land has been sold, and although we know of only two or three cases in the past 30 years, the provision is not entirely dead. For example, it could have been used as a consequence of the Government’s deciding to build an airfield without planning permission during the war years. It could also have occurred if garages, for example, had been built without permission at the time. However, if a developer were to purchase that land now they may well apply for planning permission on the wider footprint of the area because of that development. The clause allows us enforcement to prevent that from happening for up to five years after the purchase.
Although I accept that the likelihood of any further cases arising is increasingly remote, we should not dismiss the possibility and close the door on potentially legitimate enforcement. The Department had not received any representations on section 302 prior to amendments Nos. 220 and 221 being tabled, which suggests that the continued existence of section 302 is not a significant cause of concern among local authorities or practitioners.
Amendment No. 222 would repeal provisions in the Planning and Compulsory Purchase Act 2004 that have yet to come fully into force—section 43(1) in so far as it relates to section 70B of the 1990 Act and section 81B of the Planning (Listed Buildings and Conservation Areas) Act 1990—which allow a local planning authority to decline to determine an application for planning permission, listed building consent or conservation area consent where an identical or similar application is already under consideration.
The practice, known as twin-tracking, is a device sometimes used by developers so that if a planning authority fails to make a decision within the statutory determination period of eight weeks for minor applications and 13 weeks for major applications, they can appeal on one application while leaving the other application to continue to be considered by the local planning authority. We recognise that that can be a waste of local resources, but we have not yet commenced the provision because, as we indicated during the passage of the measure, the power should not come into force until the performance of local planning authorities has improved. Given the significant improvement in their performance in recent years, twin-tracking can only reduce, but we cannot accept the amendments as we want to see a continued improvement in the eight and 13-week targets.
I cannot accept the proposal in amendment No. 222 to repeal section 25 of the 2004 Act. It relates to simplified planning zones and would require them to be identified in regional spatial strategies. As the hon. Lady pointed out, that provision has not been commenced. Repealing the provision has some attractions with regard to tidying up the planning zones, but the amendment is not the most appropriate means of doing so in this case; nor is it the right time to do so, because we are seeking to look more widely at simplified planning zones, their role and relevance now that local authorities can make use of local development orders to achieve the same ends.
To that end, we published a consultation draft of “Planning Policy Statement 4: Planning for Sustainable Economic Development” in December, which includes a specific question on whether we need a separate policy on simplified planning zones. The consultation period on draft PPS 4 is open until mid-March, and that will allow local authorities, industry and the public an opportunity to give their considered views on the merits of that policy area. It is right and proper that we allow that time before making any decisions on it. To act now would be premature, so I cannot accept the repeal of section 45.
The amendment would also repeal the provisions in the 2004 Act that allow for the creation by regulations of a system of planning contributions. My hon. Friend the Minister for Local Government mentioned that in connection with new clause 5, which would have the same effect, and we cannot accept the amendment for the reasons that he gave.
The amendment would repeal the provision in section 50 of the 2004 Act and thereby allow a local planning authority, for a limited period of time, to share jurisdiction over the determination of a planning application alongside the Planning Inspectorate in cases where there has been an appeal on the grounds of non-determination. That measure would provide extra flexibility for authorities to decide cases that were originally put to them, which might be helpful when the reason for non-determination might simply be the cyclical nature of Committee meetings, for example. We have not yet implemented that provision because we are engaged in a programme of reform of the appeals system, which we would like to complete before considering any further changes of that sort.
Amendment No. 223 would repeal the planning gain supplement. It is important to recall that the Planning-gain Supplement (Preparations) Act 2007 is a short, straightforward, three-section Act that cannot be used to introduce PGS. It only allows certain authorities to incur preparatory expenditure in getting ready for PGS, does not permit the Government to introduce the PGS, and would require new primary legislation, as was made clear during its passage.

David Curry: So what is its point?

Parmjit Dhanda: I shall come to that.
The Act had nothing to say about the specific policy, nature or operation of PGS, and the right hon. Gentleman is well aware that the Government decided not to introduce the Bill to establish PGS in this parliamentary Session. We have instead made provisions in the Bill which have been well discussed in relation to the community infrastructure levy.

David Jones: How much of that expenditure has actually been made?

Parmjit Dhanda: As I said, it is a short, three-section Act, and that is as far as we have got with regard to PGS. There is no need to repeal the preparations Act, as it is only a narrow, preparatory measure designed to ensure the regulation and probity of Government expenditure in accordance with Government accounting rules. It is important that the preparations Act cannot be used to impose PGS, and further primary legislation would be needed to do so. That in itself is a strong enough commitment from the Government, and one that hon. Members should accept. It would require further primary legislation to progress with the PGS.

David Curry: The Minister has demonstrated that there is no earthly use for the legislation on the PGS. Nothing can be done with it and nothing has been done because of it. It is there because it is there because it is there. Why not get rid of it? Why should it sit there like a barnacle on the hull of the planning system, having no earthly use, being totally inedible and slowing things down? It is a pointless piece of legislation. The Minister’s only case is that the Government passed it, but it can do nothing. It is sitting there, dead in the water and all that it can do is impede the passing traffic.

Parmjit Dhanda: There is a danger of there being a little paranoia on the Opposition Benches about the existence of an Act that requires further primary legislation to go through this House before it takes effect. Hon. Members should accept the Government’s commitments on the PGS. It is not unusual for measures to exist that have gone through the House and have not been withdrawn. That is consistent with many other measures that we have seen, not least those that I talked about when discussing this string of amendments.

Jacqui Lait: It is surely not a matter of pride for the Government to have legislation on the statute book that they do not expect to implement, that requires other primary legislation for it to be used, that they have not spent any money on and that they are not defending, but replacing. It should be a matter of pride for them to get rid of unnecessary legislation.

David Curry: Would not a Government obsessed with recycling feel that this legislation should be disposed of in a hygienic manner? The Government seem to be putting it into landfill.

Jacqui Lait: An advert that I hear from time to time on my car radio says that it is composed of reused soundbites. I am afraid that the Minister sounds like he is recycling his and his Government’s soundbites.
As you have probably gathered, Mr. Illsley, the Opposition cannot understand why it is so difficult for the Government to do anything other than repeal the Planning-gain Supplement (Preparations) Act 2007. According to the Government themselves, it is going nowhere and is cluttering the statute book. We wish to see them repeal that Act as an earnest of good intent. To give them time to reflect on that, I hope that I have the support of my hon. Friends in not pressing amendment No. 223 to a vote. However, we will return to this matter on another occasion.
I do not wish to rehearse the arguments that I have put forward for the other amendments. We have received a glimmer of hope on some of them, such as the commitment made by the Minister for Local Government. We will go away and think about them. However, on many of these issues the Government have said, “It is our legislation and we dare not repeal it because it will show that we are weak.” They would actually be strong if they were to repeal things. It would show that they have every intention of cleaning up the statute book.

Elfyn Llwyd: The Under-Secretary’s last remarks were that it is commonplace to have redundant legislation. Will he give examples of where that has happened, by giving examples not of Acts that have become redundant over time, but of recent pieces of legislation that have been put on the statute book for no earthly reason at all?

Jacqui Lait: I have great sympathy with that request. I, too, would like to see such a list. However, I suspect that the Minister, with the best will in the world, could not produce it off the top of his head, although many of us probably could. Perhaps we can put a request to him that by Report stage he comes back to us with that list. Meanwhile, on the grounds that we will go away and think about these matters, we press the Government to think very clearly about introducing—

David Curry: A confidence-building measure.

Jacqui Lait: As my right hon. Friend says, the Government should have sufficient confidence in themselves to repeal redundant legislation. That would send a good signal to all of us who feel weighed down by unnecessary legislation. On the grounds that we are giving them the opportunity to do the right thing and on the basis that we can return to these matters on another occasion, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Jacqui Lait: I beg to move amendment No. 362, in schedule 6, page 129, line 4, column 2, at beginning insert ‘Section 2B(6)(b)’.

Eric Illsley: With this it will be convenient to discuss the following: Amendment No. 363, in schedule 6, page 129, line 10, at end insert—
‘Planning (Listed Buildings and Conservation Areas) Act 1990 (c.9)
Sections 74 and 75.
In sections 81A and 81B, subsections (5) and (8).
In section 82F, the words “or conservation area consent”.
In section 91, the words ““conservation area consent” has the meaning given in section 74(1);”.
In Schedule 4, paragraph 4, the words “and 74”.
In Schedule 4, paragraph 6, the words “or conservation area consent”.
In Schedule 4, paragraph 7, the words “74 and 75”.’.
Amendment No. 364, in schedule 6, page 129, line 21, at end insert ‘Section 59(4)(f)’.
New clause 10—Abolition of conservation area consent
‘(1) After section 179 of the Town and Country Planning Act 1990 there is inserted—
“179A Demolition in conservation areas
(1) A person commits an offence if the person executes or causes to be executed any works of demolition of a building in a conservation area which constitute the carrying out of development without the required planning permission.
(2) Without prejudice to subsection (1), if a person executing or causing to be executed any works of demolition of a building in a conservation area fails to comply with any condition relating to the demolition works and attached to a planning permission, he shall be guilty of an offence.
(3) In proceeding for an offence under this section it shall be a defence to prove the following matters—
(a) that works to the building were urgently necessary in the interests of safety or health or for the preservation of the building;
(b) that it was not practicable to secure safety or health or, as the case may be, the preservation of the building by works of repair or works for affording temporary support or shelter;
(c) that the works carried out were limited to the minimum measures immediately necessary; and
(d) that notice in writing justifying in detail the carrying out of works was given to the local planning authority as soon as reasonably practicable.
(4) A person who is guilty of an offence under this section shall be liable—
(a) on summary conviction, to imprisonment for a term not exceeding six months or a fine not exceeding £20,000, or both; or
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine, or both.
(5) In determining the amount of any fine to be imposed on a person convicted of an offence under this section, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to the person in consequence of the offence.”
(2) In sections 81A and 81B of the Planning (Listed Buildings and Conservation Areas) Act 1990 references to “a relevant consent” or “relevant consent” shall be replaced by “listed building consent”.
(3) In paragraph 5 of Schedule 4 to the Planning (Listed Buildings and Conservation Areas) Act 1990 for the words “to 75” there is substituted “to 73”.
(4) The Secretary of State may by regulations make transitional provision consequent upon the abolition of conservation area consent.
(5) The regulations made under subsection (4) may in particular—
(a) make provision in respect of conservation area consents and planning permissions granted before subsection (1) comes into force;
(b) make provision in respect of applications for conservation area consents and planning permission made before subsection (1) comes into force.’.

Jacqui Lait: New clause 10 is the key, as the other amendments are consequential upon it. I am sure that many of us have encountered constituency cases in which buildings outside listed areas, but which are precious to the community, have been demolished without consent. We are trying to protect those buildings, so that planning permission must be granted to demolish them. Many towns and villages have cherished buildings that are part of the townscape or of the village that people love, which are sometimes demolished without permission.
Sadly, in my constituency there is now only a site where once there was Lavender cottage. I saw it being knocked down on a Saturday morning, which made me suspicious. I got hold of the planning department, but, by the time the bureaucracy had ground into action, the building was unreplaceable. Needless to say, there has subsequently been a planning application for multiple dwelling units on that site. Meanwhile, the street in which the house existed is altered fundamentally because of the demolition. Although I have personal experience of that, I know that I am not alone in wishing that there were greater controls over demolition of buildings. That is why I have tabled the new clause.

Parmjit Dhanda: I hope that I have some better news for the hon. Lady, although I am resisting new clause 10.
The Department for Culture, Media and Sport is planning to publish a draft heritage protection Bill in the spring. It will contain provisions to abolish conservation area consent as a separate consent and merge it with planning permission. What does that mean? It is intended that, at the same time as the Bill comes into force, amendments will be made to the demolition direction and the general permitted development order to provide that demolition and partial demolition in a conservation area, to which the hon. Lady alludes, is development and will require planning permission. It will not be permitted development simply to knock down those buildings in conservation areas. We therefore believe that any changes in new clause 10 would be better sited and considered within the DCMS Bill.

Jacqui Lait: I am grateful to the Minister for his response, but there is more than one form of conservation area. There are local conservation areas as well as nationally recognised ones. Will the provision apply to a local conservation area?

Parmjit Dhanda: I apologise to the hon. Lady for not having the details of the draft Bill to hand, but all this discussion will be pertinent to that Bill and to consideration of it in Committee. Rather than rushing to try to include something in this Bill, I hope that she will go away and consider that and take a closer look at what is happening in the legislation proposed by the DCMS.

Jacqui Lait: I am grateful to the Minister for those reassurances. We look forward to the DCMS Bill. I hope that that Department will hear what we are saying. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Jacqui Lait: I beg to move amendment No. 365, in schedule 6, page 129, line 4, column 2, at beginning insert ‘In section 193(3)(a) the word “and”’.

Eric Illsley: With this it will be convenient to discuss the following: Government amendments Nos. 612 and 613.
Government new clause 30—Appeals: miscellaneous amendments.
New clause 9—Lawful development certificates—
‘(1) The Town and Country Planning Act 1990 is amended as follows.
(2) In section 193(3) (certificates under sections 191 and 192: supplementary provisions), at the end of paragraph (a) “and” shall be omitted, and there shall be inserted after paragraph (b)—
“(c) not to determine an application for a certificate under section 191 or 192 before the end of such period as may be prescribed;
(d) to publicise the application or require the applicant to publicise the application in such manner as may be prescribed;
(e) to take into account in determining such an application such representations, made within such period, as may be prescribed; and
(f) to give to any person whose representations have been taken into account such notice as may be prescribed of their decision.”
(3) In section 195 (appeals against refusal or failure to give decision on application) there shall be inserted after subsection (1)—
“(1A) Any appeal under this section shall be made by notice served within such time and in such manner as may be prescribed by a development order.
(1B) The time prescribed for the service of such a notice must not be less than—
(a) 28 days from the date of notification of the decision; or
(b) in the case of an appeal under subsection (1)(b), 28 days from the end of the period prescribed as mentioned in subsection (b) or, as the case may be, the extended period mentioned in that subsection.”.’.
Government new schedule 1—‘Appeals: miscellaneous amendments.

Jacqui Lait: This is a friendly agreement between us and those on the Government Front Bench because we are trying to do exactly the same thing but are using different formats to do it. If the Minister disagrees with that, I look forward to hearing why, but my reading of the proposals is that the Government are trying to do the same as us.

Parmjit Dhanda: I congratulate the hon. Lady on wishing to introduce time limits for making an appeal against a local planning authority’s refusal to issue a lawful development certificate, and to set the minimum time limits that may be prescribed for making an appeal. It is gratifying that we are on the same wavelength in that respect. As Opposition Members will be aware, paragraph 3 of new schedule 1 will make similar amendments to section 195 of the Town and Country Planning Act 1990, together with other changes that I shall come to in a moment. However, we do not agree with the proposed amendments to section 193, because there is no need for those requirements.
As the Committee may be aware, there are two types of lawful development certificate. The first applies where the applicant asks whether development that has taken place is lawful development—essentially, whether it is immune from enforcement action or benefits from permitted development rights. There is no reason for that to receive publicity, because the development already exists, so why would we want to advertise it in a local newspaper or otherwise? Whether the development is or is not lawful is a matter between the applicant and the local planning authority.
In the second case, the applicant asks whether proposed development can be done without planning permission—generally, whether it benefits from permitted development rights. Again, there is no need for publicity, because the development in question by definition will be minor. Requiring publicity for lawful development certificates would be entirely disproportionate. If development does not need planning permission, third parties need not be involved.
If hon. Members are concerned that applicants for lawful development certificates might not be telling the truth, I remind them that the burden of proof is on the applicant. It is therefore for the applicant to back up their claim—for example, by saying that the development in question was undertaken so long ago that it is immune from enforcement action. An example might be an extension to a house that was put up several years ago. We are saying that there is no need to publicise or advertise that, but it would be incumbent on the applicant to prove that the development had been there for a sufficient period.

Elfyn Llwyd: I understand the logic of what the Minister is saying, but may I put this example to him? The farming community often have permitted development rights to put up, for example, a byre or something similar. What if a farmer decided to put up a large byre next to a housing estate and to keep thousands of pigs in it? How, if at all, would the occupiers of the adjoining estate express their views?

Parmjit Dhanda: I am not sure that I quite understand the hon. Gentleman’s point.

Elfyn Llwyd: I shall say it again. A farmer will often have permitted development rights to put up an agricultural building. Let us say that he or she decides to put up an extensive byre next to a council estate or other housing estate and to fill it with thousands of pigs. What procedure would there be for the people living nearby to express their opinion about the propriety or otherwise of permitting that development?

Parmjit Dhanda: My understanding is that such developments are not minor, but very significant. The detail of our proposals will obviously have to be laid out in regulations, but the case that the hon. Gentleman raises is completely different. People would not be able to do such things without planning permission and the publicity associated with that.

David Curry: I can assist the Minister. The sensible reaction of the people on the council estate would be to wait, because anybody trying to raise pigs intensively in Wales would fail within a few months given the price of pig meat and grain at the moment.

Parmjit Dhanda: The right hon. Gentleman is on good form. We have had pig meat and pancakes, and I put that down to his trendy new haircut, which has obviously helped his thinking and concentration.

Richard Benyon: Just to be thoroughly boring and technical, my understanding is that the general development order, which is what I think the hon. Member for Meirionnydd Nant Conwy is referring to, contains a proximity clause. I believe that the farmer would not be permitted to undertake such a development within a certain distance of the estate, although my memory of the Town and Country Planning Act 1990 is fading.

Parmjit Dhanda: That is a helpful intervention. As I said, however, the hon. Member for Meirionnydd Nant Conwy is talking about something significant but different from what we are talking about on this set of provisions.
Hon. Members are concerned that applicants for lawful development certificates might not be telling the truth, so it is important to remind the Committee that the burden of proof is on the applicant. It is for the applicant to back up their claim that the development in question was, for example, undertaken so long ago that it is immune to enforcement action. If the local planning authority has any doubts, it can approach neighbours to see whether they can verify what the applicant says. If it cannot establish that the development is lawful, a certificate would be refused. Guidance is available to local planning authorities in circular 10/97 on enforcement planning control.
It is entirely right that there should be consultation on determinations of planning applications. If a lawful development certificate is not forthcoming and planning permission is required, the subsequent application will receive publicity in the normal way. I therefore invite the hon. Member for Beckenham not to press the amendment to a Division.
On Government amendments Nos. 612 and 613, new clause 30 and new schedule 1, I shall address my main remarks to the substantive provisions in the new schedule, but first let me deal briefly with the other provisions. The amendments insert references to new clause 30 and new schedule 1 into clause 188(3) so that the provisions in them can be brought into force separately in England and Wales. New clause 30 introduces new schedule 1.
The substantive provisions start at paragraph 2 of new schedule 1, which provides that a notice of appeal made under section 78 of the Town and Country Planning Act 1990
“must be accompanied by such information as may be prescribed”.
The power to prescribe is exercisable by the Secretary of State in England and by Welsh Ministers in Wales. The provision relates to clause 160, which requires the Secretary of State to determine the appeal method. We want to give appellants the opportunity to state in their appeal notice their preferred method of appeal and why. That is to ensure that any circumstances that may have a bearing on the appropriateness of an appeal method may be brought to the attention to the Secretary of State or the Planning Inspectorate acting on her behalf.
When determining the appeal method, the fact that clause 160 and schedule 5 apply only in England must be taken into account. However, the Welsh Assembly Government wish the provision to apply in Wales and to be commenced there by Welsh Ministers. It is therefore more appropriate for the provision to be included in a separate schedule. Paragraphs 3 to 6 of new schedule 1 make similar provision to paragraph 2 for other types of appeal. Paragraph 3 on lawful development certificate appeals has two additional elements that were covered on the debate on new clause 9.

Jacqui Lait: My only thought is that any pig farmer who wished to build a farm for thousands of pigs close to a residential area must hate the residents, because the smell is not the most pleasant.
As indicated before, I am not inclined to press the amendment. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 615, in schedule 6, page 129, line 10, at end insert—
‘In Schedule 4A, paragraph 2(4) and (5).’. —[Mr. Dhanda.]

Schedule 6, as amended, agreed to.

Clause 186 ordered to stand part of the Bill.

Clause 187

Extent

Amendment made: No. 159, in clause 187, page 105, line 15, leave out ‘16’ and insert ‘[Gas reception facilities]’.—[Mr. Dhanda.]

Clause 187, as amended, ordered to stand part of the Bill.

Clause 188

Commencement

Amendments made: No. 611, in clause 188, page 106, line 2, after ‘154,’ insert
‘[local development orders: removal of requirement to implement policies],’.
No. 612, in clause 188, page 106, line 2, after ‘158,’ insert ‘[Appeals: miscellaneous amendments]’.
No. 613, in clause 188, page 106, line 2, leave out ‘Schedule 3’ and insert ‘Schedules 3 and [Appeals: miscellaneous amendments]’.—[Mr. Dhanda.]

Parmjit Dhanda: I beg to move amendment No. 513, in clause 188, page 106, line 10, at end insert—
‘(4A) Section [Powers of National Assembly for Wales] comes into force at the end of two months beginning with the day on which this Act is passed.’.

Eric Illsley: With this it will be convenient to discuss the following: Government new clause 22—Powers of National Assembly for Wales
‘In Part 1 of Schedule 5 to the Government of Wales Act 2006 (Assembly measures: matters within Assembly’s legislative competence), after the heading “Field 18: town and country planning” insert—
“Matter 18.1
Provision for and in connection with—
(a) plans of the Welsh Ministers in relation to the development and use of land in Wales, and
(b) removing requirements for any such plans.
This does not include provision about the status to be given to any such plans in connection with the decision on an application for an order granting development consent under the Planning Act 2008.
Matter 18.2
Provision for and in connection with the review by local planning authorities of matters which may be expected to affect—
(a) the development of the authorities’ areas, or
(b) the planning of the development of the authorities’ areas.
Matter 18.3
Provision for and in connection with—
(a) plans of local planning authorities in relation to the development and use of land in their areas, and
(b) removing requirements for any such plans.
This does not include provision about the status to be given to any such plans in connection with the decision on an application for an order granting development consent under the Planning Act 2008.
Interpretation of this field
In this field—
“local planning authority” in relation to an area means—
(a) a National Park authority, in relation to a National Park in Wales;
(b) a county council in Wales or a county borough council, in any other case;
“Wales” has the meaning given by Schedule 1 to the Interpretation Act 1978.”’.
And the following amendments thereto: (a), leave out from ‘Matter 18.2’to ‘Planning Act 2008’, and (b), leave out from ‘“local planning authority’” to ‘in any other case;’.

Parmjit Dhanda: I apologise to members of the Committee for the delay in tabling the new clause. The framework powers that it contains have been the subject of detailed negotiations to ensure their scope, and that their content is right. It did not prove possible to finalise the new clause as early as we would have liked. The Government of Wales Act 2006 provides powers for the National Assembly for Wales to pass legislation known as Assembly Measures. In relation to matters set out in schedule 5 to the 2006 Act and in line with the principles of the devolution settlement, new clause 22 inserts three new matters into the town and country planning field in schedule 5. That will allow the Assembly to make its own legislation in relation to the plans made by Welsh Ministers and local planning authorities on the development and use of land in Wales. Those powers are subject to an exception that prohibits the National Assembly from making provision about the status of plans in relation to development consents for nationally significant infrastructure projects.
The Assembly may also pass measures about the matters that local planning authorities should keep under review that affect the area’s development. For example, a measure could prescribe a list of specific matters that authorities must keep under review, such as population, housing and other key cross-boundary issues. A memorandum setting out the detail of those powers has been published alongside the Bill. New clause 22 has been included at the specific request of Welsh Ministers. The Assembly Government believe that the power to make their own legislation in those areas would enable them to respond quickly and positively to the needs and challenges faced by the Welsh planning system in the future.
The development plan system in Wales is distinctive. Each local planning authority must prepare a single local development plan for its area. In doing so, it must have regard to a number of things, including the Wales spatial plan, which is prepared by Welsh Ministers. Proposed new matter 18.1 would enable the Assembly to change the status of the Wales spatial plan in relation to local development plans. It would also enable the Assembly to make provision in relation to the plan’s content and its preparations and review requirements. The new development plan system in Wales is in its infancy and no local planning authority in Wales has yet gone beyond the early stages of local development plan preparation. As the new system beds in, the Welsh Assembly Government will consider the plan requirements and any legislative changes. They will use the framework powers when appropriate, following consultation and in accordance with Welsh priorities and time scales—although the times scales are the same.
Amendment No. 513 is consequential and provides for the powers to come into force two months after Royal Assent. Amendments (a) and (b) would enable the National Assembly to legislate only in relation to plans about the development and use of land in Wales prepared by Welsh Ministers. It would not be able to legislate for local development plans. The Assembly Government are responsible for overseeing the operation of the town and country planning system in Wales, so the effect of the amendment would be to enable the National Assembly to legislate only in relation to part of that system. We consider that to be inconsistent and to risk an incoherent and, as I have said, inconsistent approach between national and local tiers of plan-making in Wales. That is clearly not acceptable. Wales has its own distinctive development plan system that is still in its infancy. It is entirely appropriate for the National Assembly to have powers to enable it to respond positively to the needs and challenges faced by the Welsh planning system in the future. Key stakeholders, including the Welsh Local Government Association, support these proposals. Therefore, I strongly resist the amendments.

David Jones: Just as the Minister commenced his speech with an apology, may I also tender my apology to you, Mr. Illsley, for raising a sequence of long points of order on the non-production of this new clause? I know that I have tried your patience, but frankly my own patience and that of other Committee members was severely tried when a matter of some constitutional significance was not tabled until 24 January. Remarkably enough, that was the very same day that the previous incumbent of Gwydyr house decided to relinquish his position. I am not sure whether the events were linked, but it was a happy coincidence.
This group is of constitutional significance. It will grant law-making powers—primary legislative powers—to the Welsh Assembly. I understand that the powers were applied for by the Welsh Assembly Government as long ago as last summer, but the draft clause was not tabled until two weeks ago. It is clear that even in the early stages of the Committee stage, the Government were not wholly aware of the nature of the powers that were sought. I put the issue to the Minister for Local Government very early on in proceedings when I asked why such important powers did not appear in the Bill at that stage. He indicated that the powers were for Welsh Ministers in the areas for which they already have devolved competence. That is not the case. As we have heard from the Under-Secretary, these are new legislative powers, not for Welsh Ministers, but for the Welsh Assembly.
The new clause will insert three new matters in part 1 of schedule 5 to the Government of Wales Act 2006. By any standard, the 2006 Act is a remarkably convoluted piece of legislation. It sets up a framework by which primary legislative powers may be devolved to the Welsh Assembly, but there is no one route for doing that. At the last count, there were no fewer than 13 routes by which such powers can be devolved to the Assembly, although I believe that academics are still counting. The two most—I hesitate to use the word popular—common routes appear to be by framework powers, such as we are considering, and by legislative competence orders.
It is instructive to draw a distinction between those two procedures. Under the legislative competence order procedure there is a considerable level of scrutiny by the Welsh Assembly and by Parliament. In Parliament, the Select Committee on Welsh Affairs conducts evidence sessions and inquires very closely into the reasons for the application for the legislative powers and the likely effects of granting such powers. Remarkably, there appears to be a considerably lower degree of scrutiny for framework powers, such as those that we are considering. The only scrutiny that I can perceive in Parliament so far is this sitting of a half-empty Committee for what will probably be an hour’s debate.
As a minimum level of scrutiny, the Government should have contrived for the new clause to be available for debate by the whole House on Second Reading. I would suggest that future framework powers should be in the Bill at a far earlier stage.

Alun Michael: I would hate Hansard to report something that is inaccurate. It seems to me that this is a quite well-attended Committee and other hon. Members and I are following what the hon. Gentleman is saying with interest.

David Jones: I am glad that the right hon. Gentleman is following what I am saying with interest, but I can see empty places. I am sure that he will agree that they are empty.
The only evidence that we have seen so far of the need for the measures that the Welsh Assembly Government appear to want is in a memorandum prepared by them, which I first saw on 9 January. I do not know whether other members of the Committee have seen that memorandum, but it merits reading.
Also, there was an evidence session with the relevant Welsh Minister in a Committee Room here on the same date. I understand that only Members representing Welsh constituencies were invited to that evidence session, and I dare say that Members from other parts of the United Kingdom did not receive such an invitation. Notwithstanding the fact that this Committee had been formed at that stage, I would have thought that it would have been extremely informative if all its members could have attended that evidence session. The memorandum that the Minister has quoted from in part is of some assistance in understanding why the powers are sought, but frankly it is not of a great deal of assistance.

Elfyn Llwyd: I do not know where the hon. Gentleman has been, but I have a copy of the statement from the Secretary of State for Wales that explains fully why those powers are required, and I shall refer to them later to educate some members of the Committee.

David Jones: If the hon. Gentleman cares to look at the top of the memorandum, he will see that it was prepared by the Welsh Assembly Government and circularised by the Secretary of State for Wales.

Elfyn Llwyd: But it is not the memorandum to which the hon. Gentleman referred.

David Jones: It is the memorandum to which I am referring, although I do not know to which memorandum the hon. Gentleman refers.
The Welsh development plan system was set out comprehensively, as the Minister said, in a recent piece of legislation: part 6 of the Planning and Compulsory Purchase Act 2004. That includes 19 detailed sections setting out not only the Welsh spatial plan system, but the local development plan system, which is unique to Wales and the UK, as he also said.
Part 6 requires Welsh Minister to produce a national spatial plan for Wales, to which local authorities must have regard when preparing their own local development plans. That spatial plan sets out the policies that Welsh Ministers think appropriate in relation to the development and use of land in Wales. As the Minister said, the proposed new matter 18.1 would confer primary legislative competence on the Welsh Assembly, enabling it to pass measures in relation to the development and use of land in Wales. I have no violent objection either to the devolution of legislative competence in that regard or to Welsh Ministers moving the furniture around with regard to the Welsh spatial plan through primary legislation. However, I observe that section 60 of the 2004 Act already contains detailed powers and obligations for the Welsh Minister to review and revise the plan. Those are two aspects that Welsh Ministers say that they need to address by means of primary legislation.

Alun Michael: The hon. Gentleman goes on at some length and appears to be making a bit of a meal out of a biscuit, to be perfectly honest. If he does not object to the powers that he has just described, which is an interesting contribution to make, what is his point, because the responsibility for preparing the national spatial plan lies with the Ministers of the Welsh Assembly, and surely what we are discussing is in relation to what follows from that?

David Jones: I am not entirely sure what the right hon. Gentleman’s point is. I have just said that I have not objected to that, but if he had cared to have regard to my amendments, he would see that they relate to matters 18.2 and 18.3, not 18.1.

Alun Michael: The hon. Gentleman, in his uniquely humourless way, does not see the point. He is contributing at some length to tell us what he does not object to, but will he tell us what he does object to?

David Jones: Frankly, it is hard to show much of a sense of humour when dealing with the dog’s breakfast that is the Government of Wales Act 2006. Nevertheless, I shall press on and enlighten the right hon. Gentleman on my concerns about proposed matters 18.2 and 18.3 of the 2006 Act.
Proposed matter 18.2 will give the Assembly legislative competence
“in connection with the review by local planning authorities of matters which may be expected to affect...the development of the authorities’ areas, or...the planning of the development”
of such areas. Proposed matter 18.3 will give the Assembly competence to make provision in connection with local development plans and the removal of
“requirements for any such plans”.
However, the fact that Welsh Ministers have made an application for primary legislative competence does not necessarily mean that such competence should be granted. The right hon. Gentleman thinks that this is a biscuit of which I am making a meal, but I should remind him that we are talking about the devolution of primary legislative powers from Parliament to the Assembly.
I should also remind the right hon. Gentleman of what the new Secretary of State for Wales said about the issue in his speech to the Welsh Grand Committee:
“I do not believe for one second that we should be rubber-stamping LCOs or legislation for devolution, because we would not be doing our job as Members of this Parliament. We must scrutinise such matters properly for the purpose of correctness, certainly, but also to establish whether we think that there is a case to be made for the particular powers, whatever they might be, to be devolved to the National Assembly.”—[Official Report, Welsh Grand Committee, 12 December 2007; c. 27.]
That speech was made before he was appointed to his new position, but I would not expect that he has changed his mind since he became the incumbent at Gwydyr house. To that extent, the Secretary of State and I are in full agreement, and I hope that all members of the Committee share our view. My point is that, so far as I can see, no compelling case has been made for the devolution of primary competence in respect of proposed matters 18.2 and 18.3.
All of the issues that the Welsh Assembly Government identified in their memorandum relate to powers that are already devolved to Assembly Ministers. Given that this is a matter of some significance, I shall analyse the various powers that Welsh Ministers seek and allow the Committee to make its mind up on whether they require additional powers.
The memorandum indicates that the Welsh Assembly Government are seeking primary competence in respect of the matters that local planning authorities must keep under review, being matters that might be expected to affect the development of their area or the planning of its development, but section 69 of the Planning and Compulsory Purchase Act 2004 already provides for the review of local development plans.
The memorandum refers to the content of local development plans—that is, prescription of what the local development plan must set out—but section 62(4) of the 2004 Act already states:
“Regulations under this section may prescribe the form and content of the”
LDP.
The memorandum refers to matters to which local planning authorities are to have regard when preparing LDPs. Section 62(5) sets those out in great detail, and includes the expression,
“such other matters as the Assembly prescribes”.
It is hard to think of a wider power residing with the Assembly.
The memorandum refers to the prescription of provisions relating to sustainability appraisal, but section 62(6) states explicitly that the planning
“authority must...carry out an appraisal of the”
LDP and
“prepare a report of the findings of the appraisal”.
The Assembly Government are seeking primary powers in respect of the preparation requirements in relation to LDPs, but section 63 sets out those requirements in great detail. What additional powers do the Assembly Government require?
The memorandum refers to the independent examination of LDPs by persons appointed by Welsh Ministers, but that is provided for comprehensively in section 64. The memorandum refers to powers for Welsh Ministers to intervene in the event that they consider an LDP to be unsatisfactory, but that is specifically provided for by section 65. The memorandum refers to the withdrawal, adoption, revocation, review and revision of LDPs, which sections 66 to 70 of the 2004 Act already provide for comprehensively and explicitly .
The memorandum refers to the possible revision of part only of an LDP. Section 70(2) provides that the Assembly may direct the LPA to revise an LDP. It goes on to refer to powers for the Welsh Ministers to prepare, revise or approve an LDP if it believes the LPA is failing properly to carry out the function itself. Those matters are already specifically and comprehensively provided for in section 71. Finally, the memorandum refers to powers to make provision in relation to joint LDPs and annual monitoring reports. Again, those are specifically provided for in sections 72 and 76 of the 2004 Act.
Why do the Welsh Assembly Government seek primary law-making powers? Where is the compelling case made out? Perhaps one clue is that the memorandum indicates that Welsh Ministers are seeking legislative competence in respect of the content, status and procedures relating to supplementary planning guidance issued by local planning authorities. That is the nub of the application for primary powers made by the Welsh Ministers. They do not say why they want any such powers.
I understand from the Minister that the Welsh Local Government Association is supportive, but I have yet to find a member of that body who is. I believe that what we have now is an application by Welsh Ministers to hoover up further legislative competence from this place, to hoover up discretion from local planning authorities in terms of the preparation of the local development plan, and to deposit those powers on the desk of Ministers in Cardiff bay.
The Welsh Assembly Government have shown themselves over the years to be both acquisitive in terms of power and highly centralising. I am concerned that the powers that they seek under the clause will enable them to operate in an even more highly interventionist manner as far as local planning authorities are concerned. I do not believe that it is a function of this Parliament simply to hand over primary powers to the Welsh Assembly unless a strong and compelling case has been made.
Welsh Ministers have seen the Bill coming up on the horizon and thought it a useful vehicle for acquiring more powers for the Assembly. They have decided to do so without any real powers in mind. They have given utterly spurious reasons as to why those powers should be sought. As I have illustrated, the powers that they ostensibly seek are already in their hands under the 2004 Act. If they seek such powers, they will have to do considerably better.

Elfyn Llwyd: The hon. Gentleman referred to hoovering. I have never heard so much rubbish in all my life. The National Assembly for Wales is a democratic body to represent the whole of Wales. His party leader in the National Assembly is very much in favour of these powers. I do not know whether he has conferred with his colleagues in the National Assembly—

David Jones: I can assure the hon. Gentleman that the Conservative party at national level, Welsh Assembly level and at local government level is fully supportive of the amendments that I seek to make.

Elfyn Llwyd: Well, that is news to me and to many members of the Committee, but there we are. I accept what the hon. Gentleman said. As a matter of correction, however, he said that the only paperwork about the clause was the statement that came to us via the Secretary of State for Wales, from which the hon. Gentleman read exhaustively. There was a written Cabinet statement on 14 December by Ms Davidson, who attended a meeting in this place to which all Members who represent Welsh constituencies were invited. Some of us took the trouble to attend. [Interruption.] There we are. If the hon. Gentleman attended too, he misled the Committee earlier.

David Jones: If I may remind the hon. Gentleman, I said that Welsh Members were invited to attend that meeting. I went on to say that it would have been extremely helpful if members of the Committee, which had already been established at that stage, had also been invited.

Elfyn Llwyd: Very well. My point is that planning is a devolved matter; it has been devolved to the National Assembly for Wales. If it is to improve the current planning system it needs these powers. I hear what the hon. Gentleman says; he was reading verbatim from that memorandum about the various sections that he says already apply. The whole point of the exercise is to ensure that Ministers are empowered to deal with this matter in its entirety in Cardiff rather than having to come through this place. That is the gist of it.

Alun Michael: Does the hon. Gentleman agree that the planning system is not just devolved but, under the Welsh legislation, different in a number of material characteristics already? The measures are being applied to a different system of planning.

Elfyn Llwyd: Indeed. The right hon. Gentleman speaks with experience, having been an Executive Member of that body. The planning system in Wales is different; for example, we lay great emphasis on the Wales spatial plan and on local development plans. The proposed change in the law will enable matters, especially those not transacted in the same manner as in England, to be brought forward without having to come through the conduit of this House.
In opening the debate, the Minister was perhaps too kind to the hon. Member for Clwyd, West, who tabled wrecking amendments. If amendments (a) and (b) to new clause 22 were accepted, they would wreck this part of the Bill in its entirety. In effect, Ministers in Wales would have to attempt to carry out their responsibilities for planning and the economy with one hand behind their back. I would find it extraordinary if the Committee were minded to allow that in any shape or form.
On the gestation period of the new clause, I, too, was rather concerned that it was late coming forward, but at least we have it now, along with a memorandum that is more detailed than that which applies to any other clause and from which the hon. Member for Clwyd, West has read exhaustively. There are important reasons to accept new clause 22 and the Government amendment.
As I have said, planning is inextricably linked with the economy and if we are serious about allowing the National Assembly for Wales to do a proper job on behalf of the people of Wales, it must have the tools. That is exactly what new clause 22 will provide. I reject utterly virtually everything that has been said in support of the amendments to it, (a) and (b). I fully support the new clause and the Government amendment.

Parmjit Dhanda: It appears that even a great rugby triumph cannot unite all Welsh members of this Committee. The hon. Member for Clwyd, West made an interesting point when he said that he had no violent objection to the proposal, but the hon. Member for Meirionnydd Nant Conwy is right that accepting the amendments would wreck what we are trying to do. It is entirely consistent to have a synergy between the Wales spatial plan and the local development plans and for them to line up.

Alun Michael: In the course of explaining the proposals, will my hon. Friend kindly tell us whether he believes that the Conservatives have set their face against the proposition before us, in the Assembly as well as in this place? The Conservatives in Cardiff bay want to give the impression of pursuing and supporting devolution, proper decision making and the rest of it, whereas there seems to be a more luddite tendency. It is important for the Committee to know what is going on.

Parmjit Dhanda: My right hon. Friend makes a good point. The Conservatives in Cardiff may well be saying that they want powers to amend the system governing the spatial strategy and local development plans and that they want independent examination of that system, but that is in complete contradiction to the amendments before us.

David Jones: On what basis is the Minister saying that Conservatives in Cardiff bay are of that opinion?
 Mr. Dhanda rose—

Eric Illsley: Order. I was going to let the point go, in the hope that it would slip away without my needing to intervene. The Minister is not responsible for what the Conservative party does in Cardiff bay, or anywhere else for that matter, and he should return to the provisions before us. We are not debating the Welsh Assembly.

Parmjit Dhanda: The hon. Member for Clwyd, West has posed a question, but we should probably leave it there, rather than get involved in a debate about it.
I commend Government amendment No. 513 and new clause 22 to the Committee and urge Opposition Members not to press amendments (a) and (b) to the vote.

David Jones: It hardly needs saying that I am extremely dissatisfied with the Minister’s remarks, but I shall not press my amendments. I shall, however, return to them later.

Amendment agreed to.

Clause 188, as amended, ordered to stand part of the Bill.

Clause 189 ordered to stand part of the Bill.

New Clause 1

LNG facilities
‘(1) The construction of an LNG facility is within section 13(1)(ca) only if (when constructed) the facility will be in England and—
(a) the storage capacity of the facility is expected to be at least 43 million standard cubic metres, or
(b) the maximum flow rate of the facility is expected to be at least 4.5 million standard cubic metres per day.
(2) The alteration of an LNG facility is within section 13(1)(ca) only if the facility is in England and the effect of the alteration is expected to be—
(a) to increase by at least 43 million standard cubic metres the storage capacity of the facility, or
(b) to increase by at least 4.5 million standard cubic metres per day the maximum flow rate of the facility.
(3) “LNG facility” means a facility for—
(a) the reception of liquid natural gas from outside England,
(b) the storage of liquid natural gas, and
(c) the regasification of liquid natural gas.
(4) In this section—
“maximum flow rate”, in relation to a facility, means the maximum rate at which gas is able to flow out of the facility, on the assumption that—
(a) the facility is filled to maximum capacity, and
(b) the rate is measured after regasification of the liquid natural gas and any other processing required on the recovery of the gas from storage;
“storage capacity” means the capacity of the facility for storage of liquid natural gas.
(5) The storage capacity of an LNG facility is to be measured as if the gas were stored in regasified form.’.—[Mr. Dhanda.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 2

Gas reception facilities
‘(1) The construction of a gas reception facility is within section 13(1)(cb) only if (when constructed)—
(a) the facility will be in England and will be within subsection (4), and
(b) the maximum flow rate of the facility is expected to be at least 4.5 million standard cubic metres per day.
(2) The alteration of a gas reception facility is within section 13(1)(cb) only if—
(a) the facility is in England and is within subsection (4), and
(b) the effect of the alteration is expected to be to increase by at least 4.5 million standard cubic metres per day the maximum flow rate of the facility.
(3) “Gas reception facility” means a facility for—
(a) the reception of natural gas in gaseous form from outside England, and
(b) the handling of natural gas (other than its storage).
(4) A gas reception facility is within this subsection if—
(a) the gas handled by the facility does not originate in England, Wales or Scotland,
(b) the gas does not arrive at the facility from Scotland or Wales, and
(c) the gas has not already been handled at another facility after its arrival in England.
(5) “Maximum flow rate” means the maximum rate at which gas is able to flow out of the facility.’.—[Mr. Dhanda.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 7

Highways
‘(1) Highway-related development is within section 13(1)(e) only if—
(a) it is the construction of a highway in a case within subsection (2) or (6),
(b) it is the improvement of a highway in a case within subsection (3) or (5), or
(c) it is the alteration of a highway in a case within subsection (5).
(2) Construction of a highway is within this subsection if—
(a) the construction is to take place outside the boundary of an existing highway,
(b) the highway will (when constructed) be wholly in England,
(c) the Secretary of State will be the highway authority for the highway, and
(d) the highway is proposed to be (or to be part of) a highway of a type within subsection (4).
(3) Improvement of a highway is within this subsection if—
(a) it is to take place outside the boundary of the highway,
(b) the highway is wholly in England,
(c) the Secretary of State is the highway authority for the highway, and
(d) the highway is (or is part of) a highway of a type within subsection (4).
(4) The types of highway referred to in subsections (2)(d) and (3)(d) are—
(a) a trunk road;
(b) a special road;
(c) a highway the construction of which is a project in respect of which the Secretary of State is required to publish an environmental statement under section 105A(3) of the Highways Act 1980;
(d) a cycle track or footpath on land separated by intervening land from a trunk road in connection with which it is to be used.
(5) Development is within this subsection if—
(a) it is the improvement, raising, lowering or other alteration of a highway,
(b) the highway is wholly in England, and
(c) the highway—
(i) crosses or enters the route of a trunk road or special road, or
(ii) is (or will be) otherwise affected by the construction or improvement of a trunk road or special road.
(6) Construction of a highway is within this subsection if—
(a) the highway will (when constructed) be wholly in England,
(b) the highway is to be constructed for a purpose connected with—
(i) development within subsection (5), or
(ii) a trunk road or special road, or
(iii) the construction of a trunk road or special road.
(7) The following terms have the meanings given by section 329(1) of the Highways Act 1980—
“cycle track”;
“footpath”;
“improvement”.’.—[Mr. Dhanda.]

Brought up, read the First and Second time, and added to the Bill.

Eric Illsley: We now come to new clause 11.

Elfyn Llwyd: On a point of order, Mr. Illsley. With the leave of the Committee, may I put a question to the Minister on new clause 11?

Eric Illsley: For the benefit of hon. Members, perhaps I should have explained that the first group of new clauses was debated earlier in the Committee. Eventually we will come to the new clauses that have not been debated, which we will then debate in the normal manner. However, new clauses 2, 7, 11 and 12 have been debated earlier in the Committee, and they are simply being moved formally.

New Clause 11

Welsh offshore generating stations
‘(1) Section 29(2) does not prevent an order under section 3 of the Transport and Works Act 1992 from being made in relation to the carrying out of works consisting of the construction or extension of a generating station that is or (when constructed or extended) will be a Welsh offshore generating station.
(2) A “Welsh offshore generating station” is a generating station that is in waters in or adjacent to Wales up to the seaward limits of the territorial sea.
(3) If, by virtue of subsection (1), an order under section 3 of the Transport and Works Act 1992 is made in relation to the carrying out of any works, development consent is treated as not being required for the carrying out of those works.’.—[Mr. Dhanda.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 12

Timetable for decisions
‘(1) The decision-maker is under a duty to decide an application for an order granting development consent by the end of the period of 3 months beginning with the day after the start day.
(2) The start day is—
(a) in a case where a Panel is the decision-maker, the deadline for the completion of its examination of the application under section 89;
(b) in a case where the Council is the decision-maker, the deadline for the completion of the single Commissioner’s examination of the application under section 89;
(c) in a case where the Secretary of State is the decision-maker, the day on which the Secretary of State receives a report on the application under section 66(2)(b) or 75(2)(b).
(3) The appropriate authority may set a date for the deadline under subsection (1) that is later than the date for the time being set.
(4) The appropriate authority is—
(a) in a case where a Panel or the Council is the decision-maker, the person appointed to chair the Commission;
(b) in a case where the Secretary of State is the decision-maker, the Secretary of State.
(5) The power under subsection (3) may be exercised—
(a) more than once in relation to the same deadline;
(b) after the date for the time being set for the deadline.
(6) Where the power under subsection (3) is exercised other than by the Secretary of State—
(a) the person exercising the power must notify the Secretary of State of what has been done and of the reasons for doing it, and
(b) the Commission’s report under paragraph 16 of Schedule 1 for the financial year in which the power is exercised must mention and explain what has been done.
(7) Where the power under subsection (3) is exercised by the Secretary of State, the Secretary of State must—
(a) notify each interested party of what has been done and of the reasons for doing it, and
(b) lay before Parliament a report explaining what has been done.
(8) A report under subsection (7)(b) must be published in such form and manner as the Secretary of State thinks appropriate.
(9) “Interested party” means a person who is an interested party in relation to the application for the purposes of Chapter 4 (see section 92).’.—[Mr. Dhanda.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 18

Correction of errors in decisions
‘In section 56(3)(c) of PCPA 2004 (appropriate consent required for correction of errors) at the beginning insert “in a case where the decision document relates to the exercise of a function in relation to Wales,”.’.—[Mr. Dhanda.]

Brought up, and read the First time.

Parmjit Dhanda: I beg to move, That the clause be read a Second time.
Briefly, the purpose of this new clause is to remove the requirement for the Secretary of State to obtain the consent of the applicant or landowner before issuing a formal notice correcting an error in an appeal decision, provided that the error is not part of the reasoning on which the decision is based. This new clause applies in England. The errors that could be corrected under this power are those that would not change the substance of the decision. Therefore, no party would be at a disadvantage.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 19

Validity of orders, decisions and directions
‘(1) Section 284(3) of TCPA 1990 (validity of certain actions on the part of the Secretary of State) is amended as follows.
(2) Before paragraph (a) insert—
“(za) any decision on an application referred to the Secretary of State under section 76A;”.
(3) In paragraph (a) for “for planning permission referred to him” substitute “referred to the Secretary of State”.’.—[Mr. Dhanda.]

Brought up, and read the First time.

Parmjit Dhanda: I beg to move, That the clause be read a Second time.
The purpose of this new clause is to correct inconsistencies within the town and country planning legislation in the provisions for challenge of decisions by the Secretary of State. The Planning and Compulsory Purchase Act 2004 empowered the Secretary of State to call in planning applications for major infrastructure projects. Some applications for major infrastructure projects, such as inland waterways and quarries, will still be determined under those provisions rather than under the new provisions for applications determined by the infrastructure planning commission.
Section 288 of the Town and Country Planning Act 1990 allows persons aggrieved by certain decisions of the Secretary of State to make an application to the High Court. Any such application must be made within six weeks of the decision. The list of decisions to which section 288 and the six-week challenge period applies was modified by the Planning and Compulsory Purchase Act 2004. The 2004 Act omitted to include decisions on major infrastructure projects. Therefore, the effect of that omission is that, at present, a person aggrieved by a decision of the Secretary of State on a call-in of a major infrastructure application would have to challenge through judicial review. Applications for judicial review must be brought within three months of the decision. That anomaly will be corrected by inserting paragraph (za) into section 284(3) of the 1990 Act. The proposals will therefore ensure consistency in the treatment of challenge periods.

Question put and agreed to.

Clause read a Second Time, and added to the Bill.

None

Applications and appeals by statutory undertakers
‘In section 266 of TCPA 1990 (applications for planning permission by statutory undertakers), after subsection (1) insert—
“(1A) Subsection (1) has effect in relation to an application or appeal relating to land in England only if the Secretary of State or the appropriate Minister has given a direction for it to have effect in relation to the application or appeal (and the direction has not been revoked).”’—[Mr. Dhanda.]

Brought up, and read the First time.

Parmjit Dhanda: I beg to move, That the clause be read a Second time.
The new clause would ensure that those called-in planning applications and appeals that relate to statutory undertakers’ operational land in England would only need to be decided jointly by the Secretary of State for Communities and Local Government, and the Secretary of State responsible for sponsoring the relevant statutory undertaker, when that is justified by the scale and significance of the proposals under consideration.
As well as significant reconstruction proposals, appeals affecting statutory undertakers’ operational land can relate to very minor matters, for which the need for two separate Secretaries of State to consider inspectors’ recommendations is an excessive burden leading to unnecessary delay. The proposed new clause would remove the need for such duplication of efforts, unless one or other of the Secretaries of State considers it appropriate to issue a direction requiring a joint decision, thereby also making it possible to make regulations enabling such cases to be determined by inspectors, as with the vast majority of other planning appeals.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 21

Appeals relating to old mining permissions
‘(1) Schedule 6 to TCPA 1990 (determination of certain appeals by person appointed by Secretary of State) is amended as set out in subsections (2) and (3).
(2) In paragraph 1—
(a) in sub-paragraph (1) after “208” insert “of this Act, paragraph 5 of Schedule 2 to the Planning and Compensation Act 1991”, and
(b) in sub-paragraph (4) for “any instrument made under it” substitute “any other Act or any instrument made under this Act or any other Act”.
(3) In paragraph 2—
(a) after sub-paragraph (1)(d) insert—
“(e) in relation to an appeal under paragraph 5 of Schedule 2 to the Planning and Compensation Act 1991, as the Secretary of State has under paragraph 6(1) and (3) of that Schedule.”, and
(b) in sub-paragraph (2) after “208(5)” insert “of this Act and paragraph 6(2) of Schedule 2 to the Planning and Compensation Act 1991”.
(4) In paragraph 5 of Schedule 2 to the Planning and Compensation Act 1991 (c. 34) (registration of old mining permissions: right of appeal) after sub-paragraph (8) insert—
“(9) Schedule 6 to the principal Act (determination of appeals by persons appointed by Secretary of State) applies to appeals under this paragraph.”’—[Mr. Dhanda.]

Brought up, and read the First time.

Parmjit Dhanda: I beg to move, That the clause be read a Second time.
The new clause would provide a power to make regulations enabling the transfer to inspectors of appeals under schedule 2 of the Planning and Compensation Act 1991, following the initial review of old mining permissions. It would, therefore, provide consistency in the handling of this type of appeal and all other types of planning and enforcement appeals. Transferring appeals to inspectors saves unnecessary duplication of effort and the attendant delay, as only those appeals that raise significant policy issues of more than local importance are then recovered for determination by the Secretary of State.
The new clause relates to reviews of permissions for mineral development, authorised under interim development orders made between 1943 and 1948 in response to wartime needs with few, if any, working and restoration conditions. Most initial reviews have been completed, but those powers, including the provision for appeals, will continue to be used by operators wishing to revive work at long-dormant mining sites. However, given that such appeals are concerned solely with securing modern operating conditions on sites, for which permission has already been granted, it would be disproportionate for them to remain as the only category of appeals that cannot be transferred for determination by inspectors.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 22

Powers of National Assembly for Wales
‘In Part 1 of Schedule 5 to the Government of Wales Act 2006 (Assembly measures: matters within Assembly’s legislative competence), after the heading “Field 18: town and country planning” insert—
“Matter 18.1
Provision for and in connection with—
(a) plans of the Welsh Ministers in relation to the development and use of land in Wales, and
(b) removing requirements for any such plans.
This does not include provision about the status to be given to any such plans in connection with the decision on an application for an order granting development consent under the Planning Act 2008.
Matter 18.2
Provision for and in connection with the review by local planning authorities of matters which may be expected to affect—
(a) the development of the authorities’ areas, or
(b) the planning of the development of the authorities’ areas.
Matter 18.3
Provision for and in connection with—
(a) plans of local planning authorities in relation to the development and use of land in their areas, and
(b) removing requirements for any such plans.
This does not include provision about the status to be given to any such plans in connection with the decision on an application for an order granting development consent under the Planning Act 2008.
Interpretation of this field
In this field—
“local planning authority” in relation to an area means—
(a) a National Park authority, in relation to a National Park in Wales;
(b) a county council in Wales or a county borough council, in any other case;
“Wales” has the meaning given by Schedule 1 to the Interpretation Act 1978.”’.—[Mr. Dhanda.]

Brought up, read the First and Second time, and added to the Bill.
Further consideration adjourned.—[Mr. Watts.]

Adjourned accordingly at six minutes to One o’clock till this day at Four o’clock.